In Australia when a person is arrested for an offence, regardless of whether they are arrested for a state offence or for a Commonwealth offence, the police responsible for the arrest must consider whether or not to grant the person bail. If the police decide not to grant bail, then the defendant has the right to be brought before the court as soon as possible to make a bail application. If bail is granted (either by the police or by the court) then the defendant can be released from custody with certain conditions on their conduct or behaviour.

There may also be conditions regarding the lodging of money or security to help ensure that the defendant comes to court on a later date for the charges to be heard. Before being released, a bail undertaking will be signed by the defendant. The bail undertaking, sometimes known as a bail bond, is a promise to comply with the conditions of the bail. If the defendant does not comply with the conditions of bail then the bail is revoked and the defendant is brought back before the court.

Types of Commonwealth offences in which bail may be required

Commonwealth offences are offences against any of the laws made by the federal government under its authority to legislate under the Constitution. These laws cover matters such as frauds against social security, Medicare and tax; people smuggling and trafficking offences (including sexual servitude and slavery matters); drug importations; money laundering; offences against corporate laws and terrorism offences. Some of these offences are investigated by the police, and some are investigated by authorised persons within the Commonwealth government department.

Commonwealth offences where bail should be refused

Despite what the state laws regarding bail might be, for some Commonwealth offences it is presumed that bail should not to be granted unless the person hearing the bail application considers that there are circumstances that are so exceptional that it should be granted. These offences include certain treason and terrorism offences, large drug importation or exportation matters, and offences where the defendant’s deliberate or reckless actions caused or could have caused the death of a person or persons. If bail is granted for one of these offences then the Commonwealth Director of Public Prosecutions can appeal against that grant of bail and the bail will be stayed. The stay means that the defendant will not be able to be released on bail. The stay is in force for up to three days to allow for an appeal against the granting of bail to be filed by the police.

Matters to be considered when granting bail

There are some matters that a person hearing the bail application (often referred to as the “bail justice”) must consider when granting bail for a Commonwealth offence, even if they do not have to be consider under the relevant state law. Before granting bail, the bail justice must consider the potential effect of the granting of bail on any victims of the offences, or any witnesses to the offences. The bail justice must also not allow any form of customary law or cultural practice to be used as a reason for justifying, excusing, authorising, or requiring the crime to be committed. These laws and practices may also not be used as an excuse to lessen the seriousness of the crime other than in certain circumstances.